Category Archives: Covering America

Invoking journalism history, New York state’s highest court has ruled that under New York’s state constitution and the state’s version of a “shield law,” a journalist cannot be forced to divulge the identity of a confidential source — even if another U.S. state is trying to extract the information. The ruling, issued Tuesday, was a major victory for press freedom, and not just in New York. But it will have its greatest impact in New York, where so much of the news media operate, because now the highest court in that state has ruled that New York’s own laws grant complete immunity to journalists from any attempts to force them to reveal their sources. Since that court is the ultimate interpreter of the New York state constitution, it is a landmark.

It remains to be seen if a New York journalist can use this new ruling as a shield against federal prosecutors. Federal courts are not obligated to follow the New York state court ruling, of course, but any person who gains more rights under a state constitution or law does not forfeit those rights just because federal law has not caught up. The U.S. Constitution and federal laws establish legal minimums that must be afforded to all Americans, but they do not establish maximums. When it comes to our rights, federal law is a floor, not a ceiling.

Briefly, the case involves Jana Winter, a reporter for FoxNews.com. She went to Colorado in 2012 to report on the horrific mass shooting at a movie theater in Aurora. Expecting a media frenzy, the local Colorado court imposed a “gag order” — that is, a pre-trial order that tries to limit disclosures to the news media in advance of a trial. During the investigation into the crime, police got hold of a notebook that belonged to the suspect, James Holmes, which he had shared with his psychiatrist. Someone divulged the existence of the notebook to the reporter, along with a summary or description of its contents. Colorado authorities consider that a breach of the gag order, and they are stamping their feet to see who disobeyed. All the cops in Colorado say “it wasn’t me,” so the authorities are turning to the journalist and demanding that she rat out her source so they can punish that person. For that, they want to make her travel 2,000 miles to violate a promise she made to her source(s). If she stands firm and refuses to name names, she goes to jail. If she gives them up, she is ruined as a reporter, and the whole enterprise of news-gathering is undermined because all sources will doubt all reporters when they promise confidentiality. [Winter has absolutely no information that is exclusive to her and based on confidential sources that has any bearing on the commission of the crime itself. All she knows about is which Colorado cop (or cops) violated the gag order. Please.]

Many, many courts would rule against the journalist in these circumstances. Judges normally sympathize with their fellow judges and see things their way. Judges normally do not like to see anyone violate their rulings and get away with it. Judges like the idea that what they say, goes. All of which makes this ruling even more remarkable. It was a win-win: the court expanded legal protections for reporters, and it relied in part on a famous case involving an 18th-century partisan journalist to do so.

Here is the text of the decision, written by Judge Victoria Graffeo. Among the stories I saw, only Poynter actually linked to the decision, which is disappointing — hey, people, there’s this thing called the Internet; let’s take advantage of it. Besides, the decision is well worth reading in full. It is a pro-freedom primer on the history of the freedom to gather news. Here are some key excerpts:

New York has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press. Our recognition of the importance of safeguarding those who provide information as part of the newsgathering function can be traced to the case of “John Peter Zenger who . . . was prosecuted for publishing articles critical of the New York colonial Governor after he refused to disclose his source” (Matter of Beach v Shanley, 62 NY2d 241, 255 [1984] [Wachtler concurrence]). A jury comprised of colonial New Yorkers refused to convict Zenger — an action widely viewed as one of the first instances when the connection between the protection of anonymous sources and the maintenance of a free press was recognized in the new world. In acknowledging the critical role that the press would play in our democratic society, New York became a hospitable environment for journalists and other purveyors of the written word, leading the burgeoning publishing industry to establish a home in our state during the early years of our nation’s history.

That is an important point: New York did indeed become the nation’s media capital. I doubt that the New York State Constitution was much of a causal factor (compared to all the economic ones), but the fact that the industry is now centered in New York City means that many, many journalists enjoy the favored status granted by this new ruling. And the ruling holds that a New York-based journalist is protected by New York’s constitution even when he or she roams into another state or online to do reporting. What remains to be seen is what might happen when a New York-based journalist attempts to use the new ruling in the Winter case against a federal prosecutor who comes around with a subpoena seeking to force a journalist to name a confidential source in a federal investigation or trial.

Judge Graffeo wrote that the protections offered to journalists in New York are ancient, robust, and multiply determined.

To begin with, she wrote, there is the matter of common law. Before New York was even a state, the jury in the 1735 seditious libel case against the printer John Peter Zenger established through its not-guilty verdict that Zenger did not have to reveal the identity of the author of the offending article. The Zenger case is usually cited as a precedent for the idea that truth is a valid defense in libel cases, but if Judge Graffeo finds the germ of a “shield law” in there, so be it. (For more on Zenger, see “Covering America,” chap 1)

Later, New York citizens wrote and ratified a state constitution. It says, in part:

“Every citizen may freely speak, write and
publish his or her sentiments on all subjects
. . . and no law shall be passed to restrain
or abridge the liberty of speech or of the
press” (NY Const, art I, § 8).

In her reading, that language from 1831 constitutes a shield for journalists all by itself, saying it is more expansive than even the First Amendment to the U.S. Constitution and thus affords more protections to New Yorkers than other Americans enjoy under the First Amendment alone.

In addition, Graffeo cites New York state law. In 1970, the New York Legislature adopted a “shield law” that includes an absolute legal privilege for journalists who want to protect the identity of their confidential sources. She said that after considering the views of the likes of Walter Cronkite and Mike Wallace, the Legislature decided to throw its weight into the balance on the side of reporters. The relevant part of that law says:

no professional journalist or newscaster . . .
shall be adjudged in contempt by any court in
connection with any civil or criminal
proceeding . . . for refusing or failing to
disclose any news obtained or received in
confidence or the identity of the source of
any such news coming into such person’s
possession in the course of gathering or
obtaining news for publication

So, Judge Graffeo concludes, journalists in New York are protected by common law, constitutional law, and statutory law. Now, how hard was that? Why do so many judges fail to understand this reasoning? The ruling holds that all these sources of protection for journalists combine to provide evidence of a clear “public policy” in New York state to encourage the practice of journalism within its borders.

But Judge Graffeo was not finished. She noted that the testimony of the journalists that the New York legislators relied upon arose from another case — that of NYTimes reporter Earl Caldwell. In a footnote, she observed

The affidavits were prepared in connection with a motion
to quash a subpoena in a case that was pending when the Shield
Law was under consideration by the Legislature and which involved
an investigative reporter from the New York Times who was
subpoenaed by a Federal Grand Jury in California to testify
concerning knowledge he obtained about the Black Panther
organization. Two lower courts held that the First Amendment
protected the reporter from being compelled to reveal his sources
or disclose information provided to him in confidence, differing
only on whether the reporter could avoid appearing at the Grand
Jury altogether (Caldwell v United States, 434 F2d 1081 [9th Cir
1970] [reporter could not be compelled to appear at Grand Jury],
vacating 311 F Supp 358 [ND Cal 1970][although required to appear

Caldwell, left, with MLK in Memphis, 1968.

at Grand Jury, reporter was entitled to protective order
precluding questioning concerning confidential sources or

information]). However, deciding the case with Branzburg v Hayes
(408 US 665 [1972]), the United States Supreme Court disagreed,
holding that the reporter could not rely on the First Amendment
to avoid appearing and giving evidence in response to a Grand
Jury subpoena.

That was a regrettable decision that journalists lost by an eyelash, only because five judges on the U.S. Supreme Court did not understand the U.S. Constitution as well as these New York judges understand the New York constitution. For more on Caldwell, see Covering America, chap 12. For more on the Supreme Court’s ruling, see earlier blog posts here and here.)

The new ruling also sends a message to prosecutors in all the other states: don’t bother going on fishing expeditions. If you send us requests to compel a New York journalist to appear in your state’s courts, those will be denied. The opinion says New York will not tolerate harassment of journalists by subpoenaing them to show up halfway across the country just to assert their immunity under the New York shield law. That would be terribly disruptive to their work. Just leave them alone, the court said. Quoting an earlier case, the ruling states:

“Journalists should be spending their time in newsrooms, not in courtrooms as participants in the litigation process”

It’s thrilling to read a judicial opinion written by a judge who actually understands the meaning of a free press and appreciates its value to society. It’s rare — and therefore, I suppose, all the more thrilling.

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Finally, a hat-tip to the judge, Victoria Graffeo, the former solicitor general for the state of New York who was appointed to the Court of Appeals by Republican Gov. George Pataki to a 14-year term in 2000. No liberal, Graffeo was expected to be a moderate conservative voice on that important bench. Labels aside, she gets credit for getting the point.

I am posting this review of my book in the scholarly journal Journalism History here, because the journal charges a lot for access.

Journalism History

Vol 13 (4), Winter 2013, p254-255

Daly, Christopher B.

Covering America: A Narrative History of a Nation’s Journalism.

Amherst and Boston: UMass Press, 2012. 535 pp. $49.95.

Many a teacher of journalism history has heard students complain about how dull or inaccessible they find any one of several available media history textbooks. And many a journalism instructor has agreed with his or her students’ complaints about de-contextualized dates and names of publishers and their historically significant newspapers strung through those tomes. Covering America: A Narrative History of a Nation’s Journalism addresses these complaints. In Covering America, Christopher Daly has wrapped the story of American journalism from the colonial period through the digital age into a carefully researched, beautifully written, and memorable account of how news reporting mostly has grown as well as improved during the span of three centuries as innovators have exploited new technologies, constitutional protections, government subsidies, cultural trends, and business formulae to maintain their financial independence and journalistic standards while serving their readers and audiences ever more efficiently.

Daly, an associate professor of journalism at Boston University with twenty years of experience covering New England for the Washington Post and writing for the Associated Press, concentrates in Covering America on newspaper, television, and digital news with only occasional references to early twentieth-century magazines and rare mentions of public relations and advertising. His focus is the changing and expanding definition of news over time. Daly admits that in Covering America, unlike Frank Luther Mott’s or Edwin Emery’s geographically broader approaches to journalism history, he emphasizes journalism originating in New York— although Boston, Philadelphia, Washington, D.C., and Chicago receive some attention when media in these cities contribute to the overall narrative. This exclusion of examples of western and southern journalism, however, contributes in two ways to the success of Covering America. It greatly reduces the clutter and detail that overwhelms so many students, and it allows Daly to hold the social, political, economic, and technological context constant as he explains the challenges and opportunities printers, for example, faced at roughly the same time and place. Rather than grasping at data, the reader finds the overall historical patterns of journalism more apparent and memorable.

In describing his history as narrative, Daly accurately describes his method of organizing this book, which is apparent from the opening paragraph of his introduction through his final chapter on “Going Digital.” Covering America, not unlike other journalism history texts, begins with Benjamin Franklin, but does so with a narrative lead one might expect from a short story or magazine feature:

On an early spring night in 1722, a young man hurried along the narrow streets of Boston, trying not to be seen. He was not a spy or a thief. He only wanted to be a writer. Just sixteen years old, Ben Franklin was hoping to get his writing published for the first time, and he had chosen a risky, roundabout route to do so.

Daly then notes that young Franklin was “skulking” around the shop of the New England Courant, owned by his brother James, in order to slip a manuscript under the door for his older brother to discover and, he hoped, to print. In this description of Franklin’s actions, Daly finds several defining characteristics of American journalism still at work today: printing was a private business, journalism was open to the young with raw talent, and the pleasure of publication drives journalists into the field.

In the first chapter on the “Foundations of the American Press, 1704-1763,” after explaining the organization of the print shop, its products, and its method of production, Daly returns to Franklin as an example of printers during this period of six decades before the American Revolution, devoting eleven of the chapter’s twenty pages to detailing his biography, readings, head for business, popular writings, and principles of journalism in his “Apology for Printers.” Within this chapter, Daly also describes the John Peter Zenger trial and acquittal for seditious libel, noting that Franklin helped Zenger obtain his attorney. Franklin receives briefer mentions in several more chapters, reminding readers the interconnections always present as journalism is transformed over time. This pattern of focusing on one or two individuals as representative of journalists from particular periods is a device of narrative compression that Daly uses in each of the chapters in Covering America. As Daly develops an overarching narrative to describe 300 years in the development of American journalism, he inserts short narratives of innovative journalists and publishers who exemplify traits of the period being described. This is how readers receive substantial information about Benjamin Day, James Gordon Bennett, William Lloyd Garrison, Frederick Douglass, Thomas Paine, Horace Greeley, Joseph Pulitzer, Ida B. Wells, William Randolph Hearst, Adolph Ochs, Henry Luce, Harold Ross, David Sarnoff, William Paley, Walter Winchell, Walter Lippmann, Dorothy Thompson, Edward R. Murrow, Ernie Pyle, John Hersey, A.J. Leibling, David Halberstam, Truman Capote, Gloria Steinem, Katherine Graham, Ted Turner, Al Neuharth, and other journalistic innovators who so comfortably populate Daly’s story of the news.

Covering America would vastly improve the student experience of an often unappreciated journalism history course, particularly at the undergraduate and master’s levels. Journalism students will leave a class after reading Daly’s book with a clear understanding of the methods and values of the field they will soon enter. They will also gain some confidence that journalism will continue even if paper and ink disappear.

A shout-out to Rutgers historian David Greenberg. In a book review in the current issue of the Journal of American History, Greenberg more or less dissected a new book called News for All the People. Then, unexpectedly, he swerved into a nice mention of my book:

Historians of journalism seeking a new synthesis will be better served by Christopher B. Daly’s Covering America: A Narrative History of a Nation’s Journalism (2012), which does not emphasize racial oppression quite as much yet does debunk cherished myths of American journalism history while presenting a coherent narrative account.

Recently, a reader posted a largely critical “customer review” of my book Covering America, on the book’s Amazon page. The writer of the criticism, Ralph Poore, is, of course, entitled to his opinion and the free expression thereof. At the same time, I have my right to engage his criticism and explain my views.

First, let me thank Mr. Poore for reading my book and for reading it quite carefully, to judge by the granularity of his comments.

Here’s his review and one of my reactions:

If you like East Coast, elitist views of journalism, then Christopher Daly’s Covering America is the book for you.

Daly focuses mainly on journalism east of the Hudson River. He makes occasional visits to news media along the Potomac River, but he frankly doesn’t find much of value beyond those two regions. He covers a lot of the familiar territory found in other journalism histories by profiling one or more journalists of their time.

Missing is the westward trek of newspapers and editors in the late 18th and 19th centuries. Missing, too, are many publications that have played important roles in the history of journalism and of the country.

To be fair, any book that purports to cover a topic across 320 years of history has to leave something out, else no one would be able to lift it. And Daly makes it clear that his book is a narrative “about the broad scope of journalism in America… [and] not an encyclopedia” (p. 6).
Fair enough.

As I wrote in the preface, my approach was not encyclopedic. My stated criterion for inclusion in my book was innovation — especially in one or more of the following dimensions:

–the economics of news,

–the technology of news gathering and dissemination

–the philosophy of news

–the sociology of the newsroom or the audience

–the politics of the power balance between journalism and other institutions.

As it happened, most of that innovation took place on the East Coast, particularly in New York City. I did not cause that, and I don’t apologize for it. That said, my book does at least mention papers outside the Northeast: the Washington Post, the Chicago Tribune, the Los Angeles Times, the St. Louis Post-Dispatch to name a few, as well as the Atlanta-based CNN.

Here’s the rest of his review. I am not going to reply point-by-point, but I would encourage any readers of this blog who have also read my book to jump in and share your views.

But what Daly leaves out is a lot, and it is often important. For example, in looking at press coverage during the Civil War, Daly’s examination stops at the Mason-Dixon Line. Of the Southern press he says only, “Across the South, many newspapers simply collapsed” (p. 110). The major Southern newspapers didn’t collapse, and never mind that Southern correspondents, including a few women, wrote some of the best war coverage by any reporter North or South.

As Daly’s narrative moves closer in time to the present, its sins of omission and commission, as well as its elitism (and frankly snarky comments about conservatives), become more pronounced. I primarily would like to deal with several examples from the mid-20th to 21st centuries to make my point.

East Coast elitists have an almost cult-like attachment to President Franklin D. Roosevelt and his New Deal programs. It comes as no surprise then that the journalists who Daly profiles in the 1940s for his “broad scope of journalism in America” never raise any questions about the efficacy of New Deal programs.

FDR’s policies cost billions of dollars often with no real benefit to the nation and in some cases caused real harm to real people, including my parents and grandparents. In FDR’s second term, unemployment lines were long and getting longer. Joblessness got worse after almost every New Deal program started.

Instead of an explanation of why journalists let this state of affairs slide, Daly gives us a portrait of gossip columnist and radio host Walter Winchell supporting Roosevelt: “At a time when most American newspapers were published by businessmen who supported the Republican Party and hated Roosevelt, Winchell…was one of the few prominent voices raised in support of fighting fascism” (p. 220).

Republicans, businessmen and Nazis vs. Winchell and Roosevelt. Really? Either this is sloppy writing or a deliberate attempt to associate the GOP with anti-democratic forces. The effect is the same in either case.

Skip ahead to the 1980-1999 period when Daly takes on conservatives directly. He writes: “Conservatives railed against a media system they said favored big government, welfare, immigrants, and alternative lifestyles while denigrating family, country, and God” (396-397).

Daly dismisses these concerns with a sheer nonsensical statement: “In part, many conservative critics were misreading the media–finding an ideological intention where journalists were actually asserting their professional values. Often, critics on the Right interpreted the journalistic ideals of independence and skepticism as political commitments to antiauthoritarianism or partisan liberalism” (397).

It is hard to see how Daly can reconcile conservatives as believing the media both favored “big government” and “antiauthoritarianism.” Those are polar opposites. And it had become clear to almost any observer west of the Hudson River that by this time period elite journalists had merged their ideological and professional values.

Finally, there is the issue of blatantly distorting the facts when it comes to Fox News. Daly cites a 2003 study by the Program on International Policy Attitudes (PIPA) at the University of Maryland that purports that Fox News viewers were more misinformed about the Iraqi war (p. 419-420). PIPA claims “those who watched Fox News almost daily were significantly more likely than those who never watched it to believe….” and then goes on to list a series of supposedly false statements.

The Wall Street Journal has examined the clear flaws in PIPA’s methods. The so-called false statements are actually just prejudiced questions about people’s opinions. The opinions just don’t reflect the beliefs of media elites and liberals.

WSJ points to more objective and fact-based surveys by the Pew Research Center for the People and the Press which ranked Fox News viewers as among the most informed. At the bottom of Pew’s list were regular consumers of CBS News, Access Hollywood and the National Enquirer.

All of this was known or should have been known by Daly while he was writing his book. For some reason he chose to ignore it.

Meanwhile, you will look in vain in Covering America for even a brief mention of high-profile cases of deliberate misinformation on the part of the East Coast, elite media. For example, you will NOT find Daly criticizing those media for:

Walter Duranty, the Pulitzer Prize winning Moscow Bureau Chief of The New York Times (1922-36) who lauded Stalin and denied widespread famine and mass starvation in the Ukraine.

Janet Cooke (1980), who fabricated a story about a child drug addict for the Washington Post and won a Pulitzer Prize.

Christopher Newton, an Associated Press reporter who in at least 40 stories (2000- 2002) quoted sources who did not exist.

Jayson Blair (2003), whose fabricated stories in the New York Times brought down Executive Editor Howell Raines and Managing Editor Gerald Boyd.

CBS’s 60 Minutes host Dan Rather and producer Mary Mapes 60 Minutes who used forged documents (2004) about President George W. Bush’s service in the Air National Guard less than two months before the presidential election.

And Daly worries about Fox News viewers being misinformed? Really?

The flaws in Covering America are unfortunate. Daly was a reporter for the Associated Press and the Washington Post before he began teaching at Boston University. He knows how to tell a good story.

There is much in Daly’s narrative that is solid and even insightful at times. But to get at the good stuff, the careful reader has to constantly act as an investigative reporter, questioning assumptions and checking facts. It is a lot of work.

I am very pleased because I know that some folks have been waiting for the e-book. These formats make the book quite a bit cheaper and dramatically lighter! For people who don’t feel drawn to the ~$50 hardcover, here’s your chance to read Covering America. The book won the 2012 Prose Award for Media and Cultural Studies, and it has been selling well and drawing rave reviews (except for one stinker on Amazon — sheesh).

Enjoy it, and write to me about your reactions. You can comment here, or email me: chrisdaly44@gmail.com

My book Covering America drew an insanely enthusiastic review in the Providence Journal on Sunday. The timing reminds me: IMHO, this book would make a great holiday gift for anyone who cares about American journalism, American history, American politics, the tech revolution in news, Jefferson/Lincoln/FDR, WWI/WWI/Vietnam, and a whole bunch of other stuff.